Citation Nr: 19133014 Decision Date: 04/30/19 Archive Date: 04/26/19 DOCKET NO. 16-43 675 DATE: April 30, 2019 ORDER The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, schizoaffective disorder, depressed mood with paranoid features, and schizophreniform disorder, is allowed. The appeal is granted to that extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, schizoaffective disorder, depressed mood with paranoid features, and schizophreniform disorder, is remanded. FINDINGS OF FACT 1. By an April 2005 rating decision, the claim of entitlement to service connection for schizophrenia, schizoaffective disorder, depression with paranoid features and schizophreniform disorder was denied. The Veteran did not perfect the appeal this decision by the timely submission of s substantive appeal or submit new and material evidence within a year of notification of the decision, making that decision final. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2005 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. CONCLUSIONS OF LAW 1. The April 2005 rating decision denying service connection for schizophrenia, schizoaffective disorder, depression with paranoid features and schizophreniform disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1976 to October 1979. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issue of entitlement to service connection for a psychiatric condition has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, schizoaffective disorder, depressed mood with paranoid features, and schizophreniform disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran claims service connection for her acquired psychiatric disorder. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). By way of history, the Veteran filed her acquired psychiatric disorder claim in September 1981, which the RO denied in an October 1981 rating decision. The Veteran did not appeal the decision or submit new and material evidence within a year of notification of the decision, thereby making the decision final after the one-year mark. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). Thereafter, the Veteran attempted to reopen the claim which was the subject to additional final determinations in January 1984, August 1989 and in May 1991 rating decisions. Thereafter, the Veteran filed to reopen her claim in November 2004, which was denied by the RO in an April 2005 rating decision. The Veteran timely filed a Notice of Disagreement of that rating decision and, in February 2006, a Statement of the Case was issued. The Veteran did not perfect this appeal with the timely submission of a substantive appeal and this decision became final. Thereafter, the Veteran filed to reopen her claim in February 2012, which the RO denied in the August 2012 rating decision on appeal. A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board is required to make its own determination as to whether new and material evidence has been received to reopen a claim. Barnett v. Brown, 83 F.3d 1380, 1385 (Fed. Cir. 1996). In its May 1991 rating decision, the RO denied the claim for service connection for an acquired psychiatric disorder based on the finding that the evidence submitted by the Veteran was not sufficient to establish service connection. At the time of that decision, the pertinent evidence of record included the Veteran’s service treatment records (STRs) and her post-service VA treatment records. The Veteran’s STRs reported several visits to the mental health clinic in 1979, but no psychiatric disorder was recorded. In addition, the Veteran’s separation examination referenced no psychiatric disorder. The post-service VA treatment records included an August 1981 VA treatment record referencing the Veteran’s inpatient psychiatric admission and a diagnosis of schizophreniform disorder. In addition, a July 1989 VA treatment record referenced an inpatient psychiatric admission and a diagnosis of schizophrenia, schizo-affective, depressed with paranoid features. A March 1991 VA treatment record also referenced an inpatient psychiatric admission and diagnosis of schizophrenia, schizo-affective, depressed with paranoid features. Evidence received since the September 1991 rating decision includes a VA examination in March 2016. Also received is the testimony of the Veteran's sister who indicated the Veteran did not have mental disorders prior to active duty and that they began during active duty. She noted the Veteran was steadily promoted early on, but this changed during military service. This information is new and material as it pertains to whether the Veteran’s acquired psychiatric disorder is related to her active service, which was a previously unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. REASONS FOR REMAND The Veteran contends that her acquired psychiatric disorder is due to her military service. A review of the Veteran’s STR demonstrates that she marked “yes” to “depression or excessive worry” on her March 1976 entrance report of medical history. However, clinical examination of her psychiatric functioning was determined to be normal at the time of her entrance examination. The Veteran reported to the mental health clinic several times in March and April of 1979. Valium was prescribed after one of these visits, with a reference to a return appointment to discuss “problems.” However, no psychiatric disorder was noted on the September 1979 separation examination. A review of the post-service VA treatment record demonstrates that the Veteran first underwent inpatient psychiatric admission in August 1981, after her older sister reported concerns about the Veteran’s behavior over the past three months. This admission occurred approximately two years after her discharge from service. The Veteran was reported to have become socially withdrawn, hostile towards her family, had refused to eat, had acted fearful and talked inappropriately at work, and was witnessed talking to herself and mumbling things. The Veteran was diagnosed with schizophreniform disorder and discharged in September 1981. The Veteran underwent a VA examination in March 2016. The examiner gave a negative opinion that the Veteran had a pre-existing psychiatric disorder prior to entering service. The examiner found that the Veteran’s report of medical history was a subjective form that was not backed up by documentation from a health care provider that she had a psychiatric disorder prior to service. The examiner also gave a negative opinion that the Veteran’s psychiatric disorder was not aggravated by her military service. The examiner found that there is no information to state that that the Veteran had been through any undue stress other than routine military duties. In addition, the examiner found no documentation that detailed her mental health complaints, other than her in-service mental health clinic visits and Valium prescription. However, the examiner did not render an opinion as to whether the Veteran’s psychiatric disorder was directly related to her military service. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2016 VA examination is inadequate based on the examiner’s failure to render an opinion as to whether the Veteran’s psychiatric disorder is directly related to her military service. The examiner noted that there was insufficient evidence of in-service symptoms of mental health problems. Significantly, the examiner did not have access to the testimony from the 2019 hearing from the Veteran's sister’s which provides evidence of mental health symptoms which were not present prior to active duty service. The sisters reported that the Veteran had no problems with high school and went straight into the military after graduation. The one sister testified that the Veteran started to display unusual mentation during active duty describing it as the Veteran seeing “things or somebody looking at her or chasing her and I knew that wasn’t normal.” As such, the Board remands this matter for the issuance of an addendum VA medical opinion to address the testimony. Further, VA should attempt to obtain from the Social Security Administration (SSA) evidence relevant to this claim. The March 2016 VA examination indicates that the Veteran had applied for SSA disability benefits. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If any such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Request from SSA relevant information to include a copy of any decision awarding benefits and copies of any medical records upon which SSA based its decision. If the requested records do not exist or cannot be obtained, the claims file should be documented accordingly. 38 C.F.R. § 3.159 (e). 3. After the above has been completed, obtain an addendum VA medical opinion from a medical professional with appropriate expertise. The reviewer should review the Veteran’s claims file. If the reviewer determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the reviewer must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that any acquired psychiatric disorder found on examination or present during the appeal period is related to a disease, event, or injury during service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 4. The examiner is advised that the Veteran’s sisters are competent to report on medical history they observed including symptoms and treatment, and that their reports must be taken into account, along with the other evidence of record, including the respective lay statements of the Veteran and her sisters in formulating the requested opinions. There is testimony that the Veteran thinking began to change during active duty and that she may have experienced hallucinations. If there is a medical basis to support or doubt the history provided by the Veteran and/or her sisters, the examiner should indicate this in the examination report and provide a rationale for that determination. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Massey, Associate Counsel